Law Commons^™

Public-Private Co-Enforcement Litigation, Stephanie Bornstein

UF Law Faculty Publications

Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations. Existing scholarship details the relative advantages of these separate and parallel public or private enforcement options. Yet scholars have paid little attention to their beneficial overlap. This Article argues that recent restrictions on both halves of hybrid enforcement systems now jeopardize adequate levels of civil public law enforcement, requiring a …

The First Amendment And Speech Urging Suicide: Lessons From The Case Of Michelle Carter And The Need To Expand Brandenburg'S Application, Clay Calvert

UF Law Faculty Publications

This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required …

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Wither Zauderer, Blossom Heightened Scrutiny? How The Supreme Court’S 2018 Rulings In Becerra And Janus Exacerbate Problems With Compelled-Speech Jurisprudence, Clay Calvert

UF Law Faculty Publications

This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine. Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny—either a heightened test or a deferential variant of rational basis review—against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative Justices to narrowly confine the aging compelled-speech test from Zauderer v. …

What Florida's Constitution Revision Commission Can Teach And Learn From Those Of Other States, Mary E. Adkins

UF Law Faculty Publications

The framers of Florida's constitution envisioned a Constitutional Revision Commission with complete freedom and independence - but its brainchild has not been able to keep that promise. In light of not only the public frustration with attempts at constitutional reform, but also of the specific problems identified both in structure and in practice of Florida's CRC, this Article suggests some reforms that could help not only Florida but other state constitution commissions or conventions be more effective and more readily accepted by the public.

Terminology Matters: Dangers Of Superficial Transplantation, Silvia Ferreri, Larry A. Dimatteo

UF Law Faculty Publications

The history of legal transplantations from one legal system to another is as long as law itself. It has numerous edifications and names including reception, borrowing, and influence. Legal transplantations from one legal system to another come at various levels of substance and penetration including the transplantation of a legal tradition (English common law to the United States and the English Commonwealth), transplantation of national law (Turkey's adoption of Swiss Civil Code), transplantation of an area of law (Louisiana's adoption and retention of French sales law), transplantation of a rule or concept (Chinese adoption of principle of good faith), and …

The Armed Society And Its Friends: A Reckoning, Charles W. Collier

UF Law Faculty Publications

This Article provides a selective introduction to some of the main social, cultural, historical, and intellectual issues surrounding gun violence and the desultory policy “debates” over gun control in America.

Unregulated gun violence, unrestricted gun violence, unlimited gun violence: these are the grave “new normal” (a term coined in financial economics) on the otherwise pastoral landscape of America. Sociologically speaking, this level of gun violence is no longer considered deviant, such that “special sanctions” would be imposed to prevent it.

Gun violence and the lack of gun control have also been described as “tragic”—a cultural tragedy—and so they are, though …

Child Migrants And America’S Evolving Immigration Mission, Shani M. King

UF Law Faculty Publications

This Article explores the many challenges—legal and otherwise—that child migrants face as they attempt to navigate the complex web of courts, laws, and shifting political landscapes to become naturalized United States citizens, while putting these challenges in the context of an immigration system that has long been shaped by politics of exclusion and xenophobia that have shaped immigration law and policy in the United States for over one-hundred years. Such an investigation comes at a time when the issue of immigration in the United States is increasingly complex and contested. As the Trump administration mulls over new prototypes for a …

Pleading Poverty In Federal Court, Andrew Hammond

UF Law Faculty Publications

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. It shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is arbitrary, inefficient, and invasive.

The Article …

A Knowledge Theory Of Tacit Agreement, Wentong Zheng

UF Law Faculty Publications

A persistent puzzle in antitrust law is whether and when an unlawful agreement could arise from conduct or verbalized communications that fall short of an explicit agreement. While courts have found such tacit agreements to exist in idiosyncratic scenarios, they have failed to articulate a clear and consistent logic for such findings. This Article attempts to fill this gap by proposing a unified theory of tacit agreement. It defines a tacit agreement as an agreement formed by non-explicit communications that enable the alleged coconspirators to have constructive knowledge of one another's conspiratory intent. This approach to tacit agreement is more …

Discovery Hydraulics, Seth Katsuya Endo

UF Law Faculty Publications

Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. But like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.

In creating the first purposive taxonomy of recent document discovery …

Disrupting The Wealth Gap Cycles: An Empirical Study Of Testacy And Wealth, Danaya C. Wright

UF Law Faculty Publications

In an empirical study of all decedents dying in 2013 in Alachua County, Florida whose estates were probated, either testate or intestate, the data show striking correlations between intestacy and lower wealth, and testacy and greater wealth. And the demographics of those who died intestate correspond to the demographics of those people at risk of falling into the cycle of wealth-dissipation. To explore the possible effects of intestacy and testacy on wealth and property succession, I analyzed 408 estates (293 testate and 115 intestate) across a variety of categories, including wealth, age, race, sex, and marital status. All of these …

Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance

UF Law Faculty Publications

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance …

Immigration, Adoption And Our National Identity, Shani M. King

UF Law Faculty Publications

In this Article, I tell the story of intercountry adoption. Our starting point is the beginning of the adoption process, with so-called “sending countries,” in which I explore the reasons that countries enter their children into the intercountry adoption market. We begin in the aftermath of World War II and continue until the present day. The story starts in Europe (specifically, in Germany, Greece, and Italy) and Japan. It then continues throughout the Korean War and the communist regime of Nicolae Ceauseacu, until present-day Russia and China. Next, I tell the story of receiving countries; I discuss the social, political, …

Reinvigorating Criminal Antitrust?, D. Daniel Sokol

UF Law Faculty Publications

Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …

The Stranger-To-The-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

This Article tracks the evolution of inheritance law for adopted children and suggests that courts use construction approaches that worked in the context of a new understanding of the parent-child relationship as a guide to construing wills in the context of changing social and legal definitions of the martial relationship. In this regard, Part II offers a brief overview of pertinent construction doctrines. Next, Part III summarizes the history of inheritance law for adopted children. Finally, Part IV draws an analogy between the stranger-to-the-adoption doctrine and an approach to inheritance law for same-sex spouses that this Essay calls the "stranger-to-the-marriage" …

Snapshot Of Trade Secret Developments, Elizabeth A. Rowe

UF Law Faculty Publications

As we enter the second year post enactment of the federal Defend Trade Secrets Act, this Paper presents a snapshot of developments to assess whether there appear to be any significant doctrinal changes afoot in trade secret litigation, both civil and criminal, during the past year. I take a qualitative look at some of the substantive rulings from 2017 to date. My assessment based on this limited sampling is that there do not appear to be any dramatic changes to the doctrinal development of the law to date.

The paper highlights some noteworthy civil cases from select federal and state …

The National Flood Insurance Program At Fifty: How The Fifth Amendment Takings Doctrine Skews Federal Flood Policy, Christine A. Klein

UF Law Faculty Publications

The National Flood Insurance Program (“NFIP”) of 1968 marked its fiftieth anniversary in 2018. Despite the program’s long history, few appreciate that the NFIP was never intended as a permanent federal subsidy for flood-prone properties along rivers and coastlines abandoned as commercially unviable by the private insurance industry. Instead, Congress provided flood insurance at below-cost rates as only an interim solution until state and local governments enacted permanent self-help land-use regulations that would restrict development in risky areas. By encouraging local governments to enact floodplain regulations, Congress intended to shift the costs of development in known flood areas back to …

The Statutory Public Interest In Closing The Pay Gap, Stephanie Bornstein

UF Law Faculty Publications

This Essay explores the role that the statutory public interest should play in the enforcement of rights under the Equal Pay Act of 1963 (EPA). Current data shows that, even fifty-five years after the enactment of federal law outlawing sex based pay discrimination, the gender pay gap inflicts huge costs on women, their families, and the U.S. economy, echoing the public concerns that led to the statute’s original passage. That Fair Labor Standards Act of 1938 (FLSA) and EPA rights cannot be waived by an employee calls into question two common employer pay-setting practices often excused under federal law: setting …

Can Gilti + Beat = Globe?, Mindy Herzfeld

UF Law Faculty Publications

The OECD is moving forward with consideration of a minimum tax as part of its solution to taxation of the digital economy. Part of a template for such a minimum tax may be the version enacted by the United States (US) in 2017 as an expansion of its Controlled Foreign Corporation (CFC) regime, known as Global Intangible Low Taxed Income (GILTI). But the OECD version will undoubtedly be different from the US iteration. It’s likely that it would also include some aspects of a minimum tax being proposed by other OECD members such as Germany and France, namely a tax …

Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness, E. Lea Johnston

UF Law Faculty Publications

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as …

Discordant Environmental Laws: Using Statutory Flexibility And Multi-Objective Optimization To Reconcile Conflicting Laws, Mary Jane Angelo

UF Law Faculty Publications

The current morass of federal environmental laws has led to significant conflicts among statutes and the manner in which agencies implement them. In recent years, this quagmire of environmental laws has hindered the progress of a number of high-profile environmental regulatory programs and restoration projects. Neither the Courts nor legal scholars have developed approaches to resolving conflicts in a manner that harmonizes environmental statutes while at the same time protecting the most critical environmental resources. A standard methodology that optimizes the multiple objectives of environmental statutes and their implementing programs would greatly enhance decision-making and ensure that the most salient …

Introduction: Early Childhood Symposium - Early Childhood Matters, Nancy E. Dowd, Teresa Drake

UF Law Faculty Publications

Early childhood is a critical time in development when equality can be sustained, or inequality can take root. As a developmental period, it is marked by rapid neurological development, and thus the period from birth to three is a foundation for all future development. In early childhood, children’s critical need is developmental support through nurturing and responsive interactions in everyday activities and routines. Differences commonly emerge linked to the differences in children’s immediate ecologies. As the contributions to this symposium underscore, one of the major impacts on ecologies is income inequality, and in particular, poverty. While it is not the …

Radical Aces: Building Resilience And Triggering Structural Change, Nancy E. Dowd

UF Law Faculty Publications

Children’s developmental equality is critical to their opportunity and lifetime success. If we are to dismantle hierarchies among children, we must dismantle barriers placed in their way as well as insure affirmative support so that each child achieves their full developmental potential. The Adverse Childhood Experiences (ACEs) framework identifies factors that create hurdles, not necessarily insurmountable, to children’s development. A higher ACEs number translates into geometrically increased challenges for individual children. Identifying ACEs, if used simply to count obstacles for children, does not contribute to the goal of children’s equality. Indeed, counting ACEs may have the converse effect, if identifying …

A Requiem For Regulatory Takings: Reclaiming Eminent Domain For Constitutional Property Claims, Danaya C. Wright

UF Law Faculty Publications

For the past forty years, the United States Supreme Court has embraced the doctrine of regulatory takings, despite being unable to provide any coherent and reliable guidance on when a regulation goes so far as to require compensation. But Justice Thomas's admission in Murr v. Wisconsin (2017) that there is no real historical basis for the Court's regulatory takings jurisprudence offers a chance to reconsider the doctrine anew. Looking back to Justice Holmes's prophetic statement in Pennsylvania Coal Co. v. Mahon, that a regulation can go too far and require an exercise of eminent domain to sustain it, I argue …

Book Review: International Tax Policy: Between Competition And Cooperation, Yariv Brauner

UF Law Faculty Publications

The author reviews International Tax Policy: Between Competition and Cooperation. By Tsilly Dagan. Cambridge Tax Law Series, 2018.

Fingerprints: An Impressionistic And Empirical Evaluation Of Richard Posner’S Impact On Contract Law, Jeffrey L. Harrison

UF Law Faculty Publications

Richard Posner’s retirement after 36 years on the federal bench presents an ideal opportunity to reflect on his sometimes controversial career as a scholar and a judge. Since his principal scholarly work, Economic Analysis of Law, has been cited in legal scholarship over 7500 times a good working hypothesis is that his impact on law has been substantial. This article considers his impact on contract law. Two lines of research were conducted: one line explores the impact of Judge Posner’s scholarly writings on judicial opinions; the other line examines the impact of his opinions on other courts.

Taxing The Digital Economy Post-Beps…Seriously, Andres Báez Moreno, Yariv Brauner

UF Law Faculty Publications

For years the advent of the digital economy has left countries stumped in their attempt to tax income earned by foreign firms without physical presence within their jurisdiction. International organizations and their member countries have failed in their attempts to tweak the rules of the international tax regime and address these challenges presented by the digital economy. This article argues that such conservative approach could not work, and fundamental reform is inevitable. The article proposes a withholding tax solution, explaining its merits and demonstrating its superiority over alternative reforms proposed to date.

Roots Of Revolution: The African National Congress And Gay Liberation In South Africa, Joseph S. Jackson

UF Law Faculty Publications

South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that …

Ohio V. American Express: Misunderstanding Two-Sided Platforms, The Charge Card 'Market,' And The Need For Procompetitive Justifications, Jeffrey L. Harrison

UF Law Faculty Publications

In Ohio v. American Express Co., the United States Supreme Court had its first knowing encounter with what it incorrectly viewed as a two-sided platform in the context of American Express’ Non Disclosure Provisions (NDP). Under these provisions merchants accepting the American Express card for payment are not permitted to inform consumers that other cards charge merchants less for their use and that this could be reflected in the final price paid. The opinion includes poor reasoning, a lack of attention to precedent, and bad news for those who thought antitrust law was due for a revival. Yet, and perhaps …